The state Supreme Court is considering written arguments in the case over whether a program to cut pollution from power plants should be allowed in Pennsylvania.
The state’s highest court is collecting briefs from the Department of Environmental Protection and coal power industry groups, who won a lower court decision blocking the Regional Greenhouse Gas Initiative.
RGGI is an agreement between 11 northeastern and mid-Atlantic states to put a limit on carbon pollution from power plants. Plants also have to pay for each ton of carbon they put into the atmosphere. Prices are set at quarterly auctions and the money raised goes back to the participating states to invest in things like clean energy, energy efficiency, and energy bill assistance. Joining RGGI was former Gov. Tom Wolf’s signature climate plan.
Opponents of RGGI say it amounts to an unconstitutional tax that will cost the state jobs in fossil fuel industries.
The Supreme Court is also accepting climate advocates as a party to the case after the Commonwealth Court denied them intervenor status.
PennFuture attorney Jessica O’Neill said they are arguing the Environmental Rights Amendment in the state’s constitution allows Pennsylvania to put a price on pollution.
The Pennsylvania legislature adopted the ERA in 1971. It names the commonwealth as a trustee of the state’s natural resources and guarantees the right of the people – including generations yet to come – to clean air, pure water, and the preservation of the natural, scenic, historic and esthetic values of the environment.
Lawyers for DEP have not relied on the ERA in previous arguments, instead saying the agency’s authority to join RGGI comes from the state’s Air Pollution Control Act, which gives DEP the power to implement programs that reduce air pollution.
“They never really explained why they did not [cite the ERA], and the court is clearly troubled by that,” O’Neill said.
She said the Supreme Court’s decision to allow environmental groups to intervene shows how the court values the ERA and the role it can play in the case.
“They’ve issued a lot of Environmental Rights Amendment cases and they want to factor that into their decision making and they want trustees to tell them how they view their obligations,” O’Neill said.
No oral arguments have been scheduled. Briefs are set to be due in September. After that, the court may issue a decision, schedule a hearing, or allow the lower court ruling to stand.
Gov. Josh Shapiro distanced himself from RGGI during his run for governor. He said he had doubts the program could reduce climate pollution while protecting jobs.
Once in office, he brought together a working group to evaluate RGGI. The group, made of opponents and supporters, could not agree that RGGI is the best program for Pennsylvania to reduce emissions.
It did agree that “a cap-and-invest carbon regulation for the power sector that generates revenue to support the Commonwealth’s energy transition would be the optimal approach…to benefit the environment by reducing emissions.” It would prefer the program cover all states with which Pennsylvania shares an electric grid, which includes states outside RGGI.
Shapiro’s administration is still defending his office’s right to join RGGI as a matter of executive authority.
In March, Shapiro proposed an alternative that would create a Pennsylvania-only cap and trade program for power plants, called PACER.
He said, if lawmakers adopt his plan, he’ll end the state’s bid to join RGGI.
This story is produced in partnership with StateImpact Pennsylvania, a collaboration among WESA, The Allegheny Front, WITF and WHYY.
